Exhibit 4.4
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is made and entered into as
of July 12, 1999 by EARTHWATCH INCORPORATED, a Delaware corporation (the
"Pledgor"), THE BANK OF NEW YORK, a New York banking corporation, having an
office at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, as
trustee (the "Trustee") for the benefit holders from time to time (the
"Holders") of the Notes (as defined herein) issued by the Pledgor under the
Indentures (as defined below) and THE BANK OF NEW YORK, as securities
intermediary (the "EarthWatch Securities Intermediary"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings given to such
terms in the New Indenture (as defined herein) and the Amended and Restated
Collateral Pledge and Security Agreement made by the Pledgor in favor of The
Bank of New York, as collateral agent. Unless otherwise defined herein, terms
used in Articles 8 or 9 of the Uniform Commercial Code as in effect in the State
of New York (the "UCC") are used herein as they are therein defined.
WITNESSETH
WHEREAS, Xxxxxx Xxxxxxx & Co. Incorporated has entered into a
Placement Agreement dated July 7, 1999 pursuant to which the Pledgor is issuing
to the Initial Purchasers units (the "Units"), each consisting of $1,000
principal amount at maturity of the Company's 13% Senior Discount Notes due 2007
(the "New Notes") and shares of the Pledgor's 8.5% Series C Cumulative
Convertible Redeemable Preferred Stock.
WHEREAS, the Pledgor and the Trustee are entering into an indenture
dated as of the date hereof (the "New Indenture"), pursuant to which the Pledgor
is issuing the Units, and the Pledgor has also entered into an amended and
restated indenture dated as of April 8, 1999 (the "12 1/2% Indenture" and
together with the New Indenture, the "Indentures"), under which the Pledgor
issued its 12 1/2% Senior Notes due 2005 (the "12 1/2% Notes" and collectively
with the New Notes, the "Notes"). In this Agreement, "Holders" shall mean,
collectively, the holders of both the New Notes and the 12 1/2% Notes.
WHEREAS, the Pledgor has agreed to (i) purchase or cause to be
purchased Pledged Securities (as defined herein) in an amount sufficient to pay
the unpaid premiums in respect of the First QuickBird Launch Insurance as of the
date hereof and (ii) place such Pledged Securities (or cause them to be placed)
in an account maintained by the Trustee with the EarthWatch Securities
Intermediary for the benefit of Holders; and
WHEREAS, the Pledgor has agreed to purchase United States Treasury
securities in an amount sufficient, in the opinion of a nationally recognized
firm of independent public accountants selected by the Pledgor and delivered to
the Trustee, upon receipt of scheduled interest and principal payments of such
securities, to provide for payment in full of all the amounts that are, or will
become, due and payable in respect of the First QuickBird Launch Insurance, as
outlined in the payment schedule attached to the First QuickBird Launch
Insurance and attached hereto as
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Schedule A (the "Payment Schedule"), and any other fee, charge, expense or
penalty that is, or may become, due with respect of the First QuickBird Launch
Insurance (the "Obligations"); and
WHEREAS, the Pledgor has agreed to (i) pledge to the Trustee for the
ratable benefit of the Holders a security interest in the Pledged Securities and
related collateral and (ii) execute and deliver this Agreement in order to
secure the payment and performance by the Pledgor of the Obligations; and
WHEREAS, the Trustee has opened an account (the "Pledge Account") with
the EarthWatch Securities Intermediary, at its office at 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York 10286, Account No. 071294, in the name of The
Bank of New York, as Trustee, for the benefit of the Holders, with respect to
which the Trustee is the sole entitlement holder and which is under the sole
dominion and control of the Trustee but subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the Pledgor hereby agrees with the Trustee, for the benefit of the
Trustee and for the ratable benefit of the Holders, as follows:
SECTION 1. Pledge and Grant of Security Interest. As security for the
prompt and complete payment and performance when due of the Obligations, the
Pledgor hereby pledges and grants to the Trustee for its benefit and for the
ratable benefit of the Holders, a continuing first priority security interest in
and to all of the Pledgor's right, title and interest in, to and under the
following (wherever located), whether investment property, general intangibles,
other rights, interests, claims and remedies or proceeds or otherwise
(collectively, the "Pledged Collateral"): (a) the United States Treasury
securities identified by CUSIP Number in Exhibit A to this Agreement (the
"Pledged Securities"), (b) any and all applicable Security Entitlements to the
Pledged Securities, (c) the Pledge Account and all funds, certificates,
instruments, assets and properties, if any, from time to time carried therein or
representing or evidencing the Pledge Account, (d) any and all related accounts
in which Security Entitlements to the Pledged Securities are carried and (e) all
proceeds of any and all of the Pledged Collateral (including, without
limitation, proceeds that constitute property of the types described in clauses
(a) - (d) of this Section 1).
SECTION 2. Security for Obligation. This Agreement secures the prompt
and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all the Obligations.
SECTION 3. Delivery of Pledged Securities, Pledge Account; Interest.
(a) The Pledged Securities shall be pledged and transferred to the Trustee and
the Trustee shall become the holder of a Security Entitlement to the Pledged
Securities through action by the EarthWatch Securities Intermediary, as
confirmed (in writing or electronically or otherwise in accordance with standard
industry practice) to the Trustee by the EarthWatch Securities Intermediary (i)
indicating by book-entry that the Pledged Securities and all Security
Entitlements thereto have been credited
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to the Pledge Account, or (ii) acquiring the Pledged Securities or a Security
Entitlement thereto for the Trustee and accepting the same for credit to the
Pledge Account.
(b) Prior to or concurrently with the execution and delivery hereof
and prior to the transfer to the Trustee of the Pledged Securities (or
acquisition by the Trustee of any Security Entitlement thereto) as provided in
subsection (a) of this Section 3, the Trustee shall establish with the
EarthWatch Securities Intermediary the Pledge Account on the books of the Ear-
thWatch Securities Intermediary as a Securities Account segregated from all
other custodial or collateral accounts, such Pledge Account to be maintained at
the offices of the EarthWatch Securities Intermediary at The Bank of New York,
and the EarthWatch Securities Intermediary shall maintain a Securities Account
at the Federal Reserve Bank of New York ("FRBNY"). Upon transfer of the Pledged
Securities to the EarthWatch Securities Intermediary (or the EarthWatch
Securities Intermediary's acquisition of the Security Entitlements thereto), as
confirmed to the EarthWatch Securities Intermediary by FRBNY or another
securities intermediary, the EarthWatch Securities Intermediary shall make
appropriate book entries indicating that the Pledged Securities and/or such
Security Entitlement have been credited to the Trustee and the Pledge Account.
Subject to the other terms and conditions of this Agreement, all funds or other
property held by the Trustee pursuant to this Agreement shall be held in the
Pledge Account subject (except as expressly provided in Section 4(a), (b) and
(c) hereof) to the exclusive dominion and control (including "control" as
defined in (S) 9-115(l)(e) of the UCC) of the Trustee and exclusively for the
benefit of the Trustee and for the ratable benefit of the Holders and segregated
from all other funds or other property otherwise held by the Trustee.
(c) The Trustee shall, in accordance with all applicable laws, have
sole dominion and control (including "control" as defined in UCC
(S) 9-115(l)(e)) over the Pledge Account, and it shall be a term and condition
of the Pledge Account and the Pledgor irrevocably instructs the Trustee,
notwithstanding any other term or condition to the contrary in any other
agreement, that no Pledged Collateral shall be released to or for the account
of, or withdrawn by or for the account of, the Pledgor or any other Person
except as expressly provided in this Agreement.
(d) The Trustee shall, in accordance with and subject to all
applicable laws, be the sole entitlement holder of, and have the sole power to
originate "Entitlement Orders" (as defined in UCC (S) 8-102(a)(8)) with respect
to, the Pledge Account and all United States Treasury securities held therein,
and it shall be a term and condition of the Pledge Account that the Trustee
shall have the right to issue such Entitlement Orders with respect to the Pledge
Account and all assets and properties from time to time carried in the Pledge
Account, including such securities, Security Entitlements and other "Financial
Assets" (as defined in UCC (S) 8-102(a)(9)) without further consent of the
Pledgor or any other Person, and that no Pledged Collateral shall be released to
or for the account of, or withdrawn by or for the account of, the Pledgor or any
other Person except as expressly provided in this Agreement.
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(e) All Pledged Collateral shall be retained in the Pledge Account
pending disbursement pursuant to the terms hereof
(f) Concurrently with the execution and delivery of this Agreement the
Trustee and the EarthWatch Securities Intermediary shall deliver to the Pledgor
and to Xxxxxx Xxxxxxx & Co. Incorporated a duly executed certificate, in the
form of Exhibit B hereto, of an officer of the Trustee, confirming the Trustee's
establishment and maintenance of the Pledge Account and its receipt and holding
of the Pledged Securities or a Security Entitlement thereto and the crediting of
the Pledged Securities or such Security Entitlement to the Pledge Account, all
in accordance with this Agreement.
(g) Concurrently with the execution and delivery of this Agreement,
the Pledgor shall deliver to the Trustee acknowledgment copies or stamped
receipt copies of proper financing statements, duly filed under the UCC of the
State of New York, covering the Pledged Collateral described in this Agreement.
(h) Concurrently with the execution and delivery of this Agreement,
the Pledgor shall deliver to the Trustee a report of a nationally recognized
firm of independent public accountants, selected by the Pledgor, substantially
in the form of Exhibit C hereto.
SECTION 4. Disbursements. (a) At least three Business Days prior to
the due date of any of the payments of the Obligations, as outlined in the
Payment Schedule, the Pledgor may, pursuant to written instructions given by the
Pledgor to the Trustee (a "Company Order"), direct the Trustee to release from
the Pledge Account and pay to the Holders on behalf of the Pledgor proceeds
sufficient to provide for payment in full of such Obligations then due and
payable. Upon receipt of a Company Order, the Trustee will take any action
necessary to provide for the payment of such Obligations then due and payable in
accordance with the Company Order from (and to the extent of) proceeds of the
Pledged Securities in the Pledge Account. Nothing in this Section 4 shall affect
the Trustee's rights to apply the Pledged Collateral to the payments of amounts
due on the Notes upon acceleration thereof.
(b) The Pledgor may make any payment or portion of any payment of an
Obligation for which the Pledged Collateral is security from a source of funds
("Other Funds") other than the Pledge Account; however the Trustee shall not
release proceeds from the Pledge Account prior to the payment in full of the
Obligations and only in the manner as provided in subsection (d) hereof.
(c) Upon payment in full of the Obligations, the security interest in
the Pledged Collateral evidenced by this Agreement will automatically terminate
and be of no further force and effect and the Pledged Collateral shall promptly
be paid over and transferred to the Pledgor. Furthermore, upon the release of
any Pledged Collateral from the Pledge Account in accordance with
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the terms of this Agreement, the security interest evidenced by this Agreement
in such released Pledged Collateral will automatically terminate and be of no
further force and effect.
(d) At least three Business Days prior to the due date of each of the
scheduled Obligation payments, the Pledgor shall give the Trustee notice (by
Company Order) as to whether such payment of the Obligations will be made
pursuant to Section 4(a) or 4(b) and the amount that will be paid from the
Pledge Account and from Other Funds. Any Other Funds to be used to make any
payment of the Obligations shall be delivered to the Trustee, in immediately
available funds, prior to 10:00 a.m. (New York City time) on such payment date.
If no such notice is given or such Other Funds have not been so delivered, the
Trustee will act pursuant to Section 4(a) as if it had received a Company Order
pursuant thereto for the payment in full of the part of the Obligation then due
from the Pledge Account.
(e) The Trustee shall liquidate Pledged Collateral in the Pledge
Account (pursuant to written instructions from Pledgor) in order to make any
scheduled payment of an Obligation unless there are sufficient funds in the
Pledge Account.
(f) Nothing contained in Section 1, Section 3, this Section 4, Section
11 or any other provision of this Agreement shall (i) afford the Pledgor any
right to issue Entitlement Orders with respect to any Security Entitlement to
the Pledged Securities or any Securities Account in which any such Security
Entitlement may be carried, or otherwise afford the Pledgor rights to any such
Security Entitlement or (ii) except as otherwise specified under this Agreement
(or required by applicable law) give rise to any other rights of the Pledgor
with respect to the Pledged Securities, any Security Entitlement thereto or any
Securities Account in which any such Security Entitlement may be carried (except
as expressly provided in Sections 4(a) hereof) by the Trustee in its capacity as
such (and not as a securities intermediary).
SECTION 5. Representations and Warranties. The Pledgor hereby
represents and warrants that, as of the date hereof:
(a) The execution and delivery by the Pledgor of, and the performance
by the Pledgor of its obligations under, this Agreement will not contravene
any provision of applicable law or statute or the organization documents of
the Pledgor or any material agreement or other material instrument binding
upon the Pledgor or any of its subsidiaries or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Pledgor or any of its subsidiaries, or result in the creation or
imposition of any Lien on any assets of the Pledgor, except for the
security interests granted under this Agreement; no consent, approval,
authorization or order of, or qualification with, or other action by, any
governmental or regulatory body or agency or any third party is required
(i) for the execution, delivery or performance by the Pledgor of this
Agreement, (ii) for the grant by the Pledgor of the security interest
granted hereby, for the pledge by the Pledgor of the Pledged Collateral
pursuant to this Agreement, (iii) for the perfection and maintenance of the
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pledge and security interest created hereby (including the first-priority
nature of such pledge and security interest), assuming compliance by the
EarthWatch Securities Intermediary with all obligations contained in this
Agreement or (iv) except for any such consents, approvals, authorizations
or orders required to be obtained by the Trustee (or the Holders) for
reasons other than the consummation of this transaction, for the exercise
by the Trustee of the rights provided for in this Agreement or the remedies
in respect of the Pledged Collateral pursuant to this Agreement.
(b) Immediately before depositing the Pledged Securities into the
Pledge Account, the Pledgor is the legal and beneficial owner of the
Pledged Collateral free and clear of any Lien or claims of any person or
entity (except for the security interests granted under this Agreement). No
financing statement or other instrument similar in effect covering the
Pledgor's interest in the Pledged Securities is on file in any public
office, other than any financing statements filed pursuant to this
Agreement.
(c) This Agreement has been duly authorized, validly executed and
delivered by the Pledgor and assuming the due authorization, execution and
delivery thereof by the Trustee and the EarthWatch Securities Intermediary,
constitutes a valid and binding agreement of the Pledgor, enforceable
against the Pledgor in accordance with its terms, except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, preference, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting creditors' rights or remedies
generally, (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability, (iii) the exculpation
provisions and rights to indemnification hereunder may be limited by U.S.
federal and state securities laws and public policy considerations and (iv)
the waiver of rights and defenses contained in Section 11(b), Section 15.11
and Section 15.15 hereof may be limited by applicable law.
(d) Upon the transfer to the Trustee of the Pledged Securities and the
acquisition by the Trustee of a Security Entitlement thereto in accordance
with Section 3, and the compliance by the EarthWatch Securities
Intermediary with the provisions of this Agreement, the pledge of and grant
of a security interest in the Pledged Collateral securing the payment of
the Obligations for the benefit of the Trustee and the Holders will
constitute a valid first priority perfected security interest in such
Pledged Collateral, enforceable as such against all creditors of the
Pledgor (and any persons purporting to purchase any of the Pledged
Collateral from the Pledgor) and all filings and actions (other than the
transfer to the Trustee of the Pledged Securities) necessary or desirable
to perfect and protect such security interest have been duly taken.
(e) There are no legal or governmental proceedings pending or, to the
best of the Pledgor's knowledge, threatened to which the Pledgor or any of
its subsidiaries is a party or to which any of the properties of the
Pledgor or any such subsidiary is subject that would
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materially adversely affect the power or ability of the Pledgor to perform
its obligations under this Agreement or to consummate the transactions
contemplated hereby.
(f) The pledge of the Pledged Collateral pursuant to this Agreement
is not prohibited by law or governmental regulation (including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal
Reserve System) applicable to the Pledgor.
(g) No Event of Default (as defined herein) exists.
(h) The total amount of the Obligation, as provided in Schedule A, is
$28,623,500.00, and this amount is the only amount to be paid with respect
to the Obligation, including any other fee or charge related to the First
QuickBird Launch Insurance that is or may become payable.
SECTION 6. Further Assurances. The Pledgor will execute and deliver or
cause to be executed and delivered, or use its reasonable best efforts to
procure, all assignments, instruments and other documents, all in form and
substance reasonably satisfactory to the Trustee, and take any other actions
that are necessary or desirable, to perfect, continue the perfection of, or
protect the first priority of the Trustee's security interest in and to the
Pledged Collateral, to protect the Pledged Collateral against the rights,
claims, or interests of third persons (other than any such rights, claims or
interests created by or arising through the Trustee), to enable the Trustee to
enforce its rights and remedies hereunder, or to effect the purposes of this
Agreement. A photocopy or other reproduction of this Agreement or any financing
statement covering the Pledged Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. The Pledgor will
promptly pay all reasonable costs incurred in connection with any of the
foregoing.
SECTION 7. Covenants. The Pledgor covenants and agrees with the
Trustee and the Holders that from and after the date of this Agreement until the
payment in full in cash of the Obligations:
(a) that (i) it will not (and will not purport to) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Pledged Collateral or its beneficial interest therein, and (ii) it will not
create or permit to exist any Lien or other adverse interest in or with
respect to its beneficial interest in any of the Pledged Collateral (except
for the security interests granted under this Agreement) and at all times
will be the sole beneficial owner of the Pledged Collateral; and
(b) that it will not (i) enter into any agreement or understanding
that restricts or inhibits or purports to restrict or inhibit the Trustee's
rights or remedies hereunder, including, without limitation, the Trustee's
right to sell or otherwise dispose of the Pledged Collateral or (ii) fail
to pay or discharge any tax, assessment or levy of any nature with respect
to its beneficial interest in the Pledged Collateral not later than five
days prior to the date of any
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proposed sale under any judgment, writ or warrant of attachment with
respect to such beneficial interest.
SECTION 8. Power of Attorney. Upon the occurrence of a failure to pay
an Obligation when due and payable, the Pledgor hereby appoints and constitutes
the Trustee as the Pledgor's attorney-in-fact, with full authority in the place
and stead of the Pledgor and in the name of the Pledgor or otherwise, from time
to time in the Trustee's discretion, to take any action and to execute any
instrument that the Trustee may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, the following powers:
(a) collection of proceeds of any Pledged Collateral; (b) conveyance of any item
of Pledged Collateral to any purchaser thereof, (c) giving of any notices or
recording of any Liens under Section 6 hereof, and (d) paying or discharging
taxes or Liens levied or placed upon the Pledged Collateral, the legality or
validity thereof and the amounts necessary to discharge the same to be
determined by the Trustee in its sole reasonable discretion, and such payments
made by the Trustee to become part of the Obligations of the Pledgor to the
Trustee, due and payable immediately upon demand. The Trustee's authority under
this Section 8 shall include, without limitation, the authority to endorse and
negotiate any checks or instruments representing proceeds of Pledged Collateral
in the name of the Pledgor, execute and give receipt for any certificate of
ownership or any document constituting Pledged Collateral, transfer title to any
item of Pledged Collateral, sign the Pledgor's name on all financing statements
(to the extent permitted by applicable law) or any other documents deemed
necessary or appropriate by the Trustee to preserve, protect or perfect the
security interest in the Pledged Collateral and to file the same, prepare, file
and sign the Pledgor's name on any notice of Lien, and to take any other actions
arising from or incident to the powers granted to the Trustee in this Agreement.
This power of attorney is coupled with an interest and is irrevocable by the
Pledgor. Notwithstanding anything to the contrary stated herein, the Trustee has
no duty or obligation to exercise any of the powers stated in this Section 8.
SECTION 9. No Assumption of Duties; Reasonable Care. The rights and
powers granted to the Trustee hereunder are being granted in order to preserve
and protect the security interest of the Trustee and the Holders in and to the
Pledged Collateral granted hereby and shall not be interpreted to, and shall not
impose any duties on the Trustee in connection therewith other than those
expressly provided herein or imposed under applicable law. Except as provided by
applicable law, the Trustee shall be deemed to have exercised reasonable care in
the custody and preservation of the Pledged Collateral in its possession if the
Pledged Collateral is accorded treatment substantially equal to that which the
Trustee accords similar property held by the Trustee for similar accounts, it
being understood that the Trustee in its capacity as such shall not have any
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities or other matters relative to any Pledged
Collateral, whether or not the Trustee has or is deemed to have knowledge of
such matters or (b) investing or reinvesting any of the Pledged Collateral or
any loss on any investment; provided, however, that nothing contained in this
Agreement shall relieve the Trustee of any responsibilities as a securities
intermediary under applicablc law.
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SECTION 10. Indemnity. The Pledgor shall indemnify, hold harmless and
defend the Trustee and its directors, officers, agents and employees from and
against any and all claims, actions, obligations, liabilities and expenses,
including reasonable defense costs, reasonable investigative fees and costs and
reasonable legal fees and expenses and damages arising from the Trustee's
performance as Trustee under this Agreement, except to the extent that such
claim, action, obligation, liability or expense is directly attributable to the
gross negligence or wilful misconduct of such indemnified person.
SECTION 11. Remedies Upon Event of Default. If any Event of Default
under the Indentures or the Amended and Restated Collateral Pledge and Security
Agreement (any such Event of Default being referred to in this Agreement as an
"Event of Default") shall have occurred and be continuing:
(a) The Trustee and the Holders shall have, in addition to all other
rights given by law or by this Agreement, the Indentures or the Amended and
Restated Collateral Pledge and Security Agreement, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under
the UCC. In addition, with respect to any Pledged Collateral that shall
then be in or shall thereafter come into the possession or custody of the
Trustee, the Trustee may sell or cause the same to be sold at any broker's
board or at public or private sale, in one or more sales or lots, at such
price or prices as the Trustee may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk. The purchaser of
any or all Pledged Collateral so sold shall thereafter hold the same
absolutely, free from any claim, encumbrance or right of any kind
whatsoever created by or through the Pledgor. Unless any of the Pledged
Collateral threatens, in the reasonable judgment of the Trustee, to decline
speedily in value or is or becomes of a type sold on a recognized market,
the Trustee will give the Pledgor reasonable notice of the time and place
of any public sale thereof, or of the time after which any private sale or
other intended disposition is to be made. To the extent permitted by
applicable law, any sale of the Pledged Collateral conducted in conformity
with reasonable commercial practices of banks, insurance companies,
commercial finance companies, or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be
commercially reasonable. Any requirements of reasonable notice shall be met
if such notice is mailed to the Pledgor as provided in Section 15.1 hereof
at least 10 days before the time of the sale or disposition. The Trustee or
any Holder may, in its own name or in the name of a designee or nominee,
buy any of the Pledged Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs
and reasonable attorneys' fees, expenses and disbursements) of, or incident
to, the enforcement of any of the provisions hereof shall be recoverable
from the proceeds of the sale or other disposition of the Pledged
Collateral.
(b) The Pledgor further agrees to use its reasonable best efforts to
do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Collateral pursuant to
this Section 11 valid and binding and in
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compliance with any and all other applicable requirements of law. The
Pledgor further agrees that a breach of any of the covenants contained in
this Section 11 will cause irreparable injury to the Trustee and the
Holders, that the Trustee and the Holders have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 11 shall be specifically enforceable against the
Pledgor, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred.
(c) The Trustee may, without notice to the Pledgor except as required
by law and at any time or from time to time, charge, set-off and otherwise
apply all or any part of the Obligations against the Pledge Account or any
part thereof.
SECTION 12. Expenses. The Pledgor shall upon demand pay to the Trustee
the amount of any and all reasonable expenses, including, without limitation,
the reasonable fees, expenses and disbursements of its counsel, experts and
agents retained by the Trustee that the Trustee may incur in connection with (a)
the review, negotiation and administration of this Agreement, (b) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (c) the exercise or enforcement of any of the rights
of the Trustee and the Holders hereunder or (d) the failure by the Pledgor to
perform or observe any of the provisions hereof.
SECTION 13. Securi1y Interest Absolute. All rights of the Trustee and
the Holders and security interests hereunder, and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of.
(a) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations;
(b) any taking, exchange, surrender, release or non-perfection of any
other collateral or any taking, release or amendment or waiver from any
guaranty for all or any of the Obligations;
(c) any change, restructuring or termination of the corporate
structure or the existence of the Pledgor or any of its subsidiaries; or
(d) to the extent permitted by applicable law, any other circumstance
which might otherwise constitute a defense available to, or a discharge of,
the Pledgor in respect of the Obligations or of this Agreement.
SECTION 14. EarthWatch Securities Intermediary's Representations,
Warranties and Covenants. The EarthWatch Securities Intermediary represents and
warrants that it is as of the date
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hereof, and it agrees that for so long as it maintains the Pledge Account and
acts as securities intermediary pursuant to this Agreement it shall be a
"Securities Intermediary" (as defined in the UCC and in 31 C.F.R. (S)357.2) and
shall be eligible to maintain, and does maintain, a Participant's Securities
Account (as defined in 31 C.F.R. (S)357.2) in the name of the EarthWatch
Securities Intermediary with the FRBNY (a "FRBNY Member Securities Account"). In
furtherance of the foregoing, the EarthWatch Securities Intermediary hereby:
(a) represents and warrants that it is a corporation that in the
ordinary course of its business maintains Securities Accounts for others
and is acting in that capacity hereunder and with respect to the Pledge
Account;
(b) represents and warrants that it maintains the FRBNY Member
Securities Account with the FRBNY and that the United Stated Treasury
securities constituting the Pledged Securities transferred to the
EarthWatch Securities Intermediary pursuant to Section 3(b) have been
credited to the FRBNY Member Securities Account;
(c) agrees that the Pledge Account shall be an account to which
Financial Assets may be credited, and the EarthWatch Securities
Intermediary undertakes to treat the Trustee as the sole person entitled to
exercise rights that comprise (and entitled to the benefits of) such
Financial Assets, and entitled to exercise the rights of an entitlement
holder and control in the manner contemplated by the UCC, further agrees to
identify the Trustee in the records of the EarthWatch Securities
Intermediary as the sole person having a Securities Entitlement against the
EarthWatch Securities Intermediary with respect to the Pledge Account and
all Financial Assets credited thereto, and further agrees to comply with
any "entitlement order" (as defined in the UCC) issued by the Trustee
relating to the Pledge Account without further consent by the Company;
(d) hereby represents that it has not granted, and covenants that so
long as it acts as EarthWatch Securities Intermediary hereunder it shall
not grant, control (including without limitation, "control" as defined in
UCC (S) 9-115(l)(e)) over or with respect to any Pledged Collateral
credited to the Pledge Account from time to time to any other Person other
than the Trustee;
(e) covenants that in its capacity as EarthWatch Securities
Intermediary hereunder and with respect to the Pledge Account, it shall not
take any action inconsistent with, and represents and covenants that it is
not and so long as this Agreement remains in effect will not become party
to any agreement, the terms of which are inconsistent with the provisions
of this Agreement;
(f) agrees, with the other parties to this Agreement, that any item
of property credited to the Pledge Account shall be treated as a Financial
Asset;
12
(g) agrees, with the other parties to this Agreement, so long as it
serves as EarthWatch Securities Intermediary pursuant to this Agreement, to
maintain the Pledge Account as a Securities Account and maintain
appropriate books and records in respect thereof in accordance with its
usual procedures and subject to the terms of this Agreement;
(h) agrees, with the other parties to this Agreement, that the
EarthWatch Securities Intemediary's jurisdiction, for purposes of UCC
(S) 8-110(e) and 31 C.F.R. 357.11(b) as it pertains to this Agreement, the
Pledge Account and Security Entitlements relating thereto, shall be the
State of New York.
SECTION 15. Miscellaneous Provisions.
Section 15.1. Notices. Any notice or communication given hereunder
shall be sufficiently given if in writing and delivered in person or mailed by
first class mail, commercial courier service or telecopier communication,
addressed as follows:
if to the Pledgor:
EarthWatch Incorporated
0000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxx C.T. Linfield
Xxxxxx Godward LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telecopier: 000-000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Corporate Trust Trustee Administration
13
Section 15.2. No Adverse Interpretation of Other Agreements. This
Agreement may not be used to interpret another pledge, security or debt
agreement of the Pledgor or any subsidiary thereof. No such pledge, security or
debt agreement (other than the Indentures and the Amended and Restated
Collateral Pledge and Security Agreement) may be used to interpret this
Agreement.
Section 15.3. Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
Section 15.4. Headings. The headings in this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.5. Counterpart Originals. This Agreement may be signed in
two or more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same agreement.
Section 15.6. Benefits of Agreement. Nothing in this Agreement,
express or implied, shall give to any person, other than the parties hereto and
their successors hereunder, and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
Section 15.7. Amendments, Waivers and Consents. Any amendment or
waiver of any provision of this Agreement and any consent to any departure by
the Pledgor from any provision of this Agreement shall be effective only if made
or duly given in compliance with all of the terms and provisions of the
Indentures, and neither the Trustee nor any Holder shall be deemed, by any act,
delay, indulgence, omission or otherwise, to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default (as defined
herein) or in any breach of any of the terms and conditions hereof. Consistent
with the foregoing, this Agreement may be amended, its provisions may be waived
and departures from its provisions may be consented to by action of the Pledgor
and the Trustee, and (if applicable) the Holders, as provided in the Indentures,
and no such amendment, waiver or consent shall require any action or approval by
the Initial Purchasers. Failure of the Trustee or any Holder to exercise, or
delay in exercising, any right, power or privilege hereunder shall not preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Trustee or any Holder of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that the Trustee or such Holder would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
14
Section 15.8. Interpretation of Agreement. All terms not defined
herein, in the Indentures or the Collateral Pledge and Security Agreement shall
have the meaning set forth in the UCC, except where the context otherwise
requires. Acceptance of or acquiescence in a course of performance rendered
under this Agreement shall not be relevant to determine the meaning of this
Agreement even though the accepting or acquiescing party had knowledge of the
nature of the performance and opportunity for objection.
Section 15.9. Continuing Security Interest; Termination. (a) This
Agreement shall create a continuing security interest in and to the Pledged
Collateral and shall, unless otherwise provided in this Agreement, remain in
full force and effect until the payment in full in cash of the Obligations. This
Agreement shall be binding upon the Pledgor, its transferees, successors and
assigns, and shall inure, together with the rights and remedies of the Trustee
hereunder, to the benefit of the Trustee, the Holders and their respective
successors, transferees and assigns.
(b) This Agreement (other than the Pledgor's obligations under
Sections 10 and 12) shall terminate upon the payment in full in cash of the
Obligations or if the Pledgor shall become obligated under the Indentures to
redeem all of the outstanding Notes and such Notes shall have been redeemed, and
if no Default or Event of Default (as defined in the Indentures or the Amended
and Restated Collateral Pledge and Security Agreement) shall have occurred and
be continuing. At such time, the Trustee shall, pursuant to a Company Order,
reassign and redeliver to the Pledgor all of the Pledged Collateral hereunder
that has not been sold, disposed of, retained or applied by the Trustee in
accordance with the terms of this Agreement and take all actions that are
necessary to release the security interest created by this Agreement in and to
the Pledged Collateral, including the execution and delivery of all termination
statements necessary to terminate any financing or continuation statements filed
with respect to the Pledged Collateral. Such reassignment and redelivery shall
be without warranty by or recourse to the Trustee in its capacity as such,
except as to the absence of any Liens on the Pledged Collateral created by or
arising through the Trustee, and shall be at the reasonable expense of the
Pledgor.
Section 15.10. Survival of Representations and Covenants. All
representations, warranties and covenants of the Pledgor contained herein shall
survive the execution and delivery of this Agreement, and shall terminate only
upon the termination of this Agreement.
Section 15.11. Waivers. The Pledgor waives presentment and demand
for payment of any of the Obligations, protest and notice of dishonor or default
with respect to any of the Obligations, and all other notices to which the
Pledgor might otherwise be entitled, except as otherwise expressly provided
herein.
Section 15.12. Authority of the Trustee. (a) The Trustee shall have
the right to exercise all powers hereunder that are specifically granted to the
Trustee by the terms hereof, together with such powers as are reasonably
incident hereto. The Trustee may perform any of its duties hereunder or in
connection with the Pledged Collateral by or through agents or employees and
15
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Except as otherwise expressly provided in
this Agreement, neither the Trustee nor any director, officer, employee,
attorney or agent of the Trustee shall be liable to the Pledgor for any action
taken or omitted to be taken by the Trustee, in its capacity as Trustee,
hereunder, except for its own gross negligence or willful misconduct, and the
Trustee shall not be responsible for the validity, effectiveness or sufficiency
hereof or of any document or security furnished pursuant hereto. The Trustee and
its directors, officers, employees, attorneys and agents may conclusively rely
on any communication, instrument or document believed by it or them to be
genuine and correct and to have been signed or sent by the proper person or
persons.
(b) The Pledgor acknowledges that the rights and responsibilities of
the Trustee under this Agreement with respect to any action taken by the Trustee
or the exercise or non-exercise by the Trustee of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Trustee and the Holders, be governed
by the Indentures and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Trustee and the Pledgor, the
Trustee shall be conclusively presumed to be acting as agent for the Holders
with full and valid authority so to act or refrain from acting, and the Pledgor
shall not be obligated or entitled to make any inquiry respecting such
authority.
(c) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Trustee or the
EarthWatch Securities Intermediary.
(d) No provision of this Agreement shall require the Trustee or the
EarthWatch Securities Intermediary to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights and powers.
(e) The Trustee and the EarthWatch Securities Intermediary may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(f) The Trustee and the EarthWatch Securities Intermediary may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee and the
EarthWatch Securities Intermediary shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 15.13. Final Expression. This Agreement, together with the
Indentures, the Amended and Restated Collateral Pledge and Security Agreement
and any other agreement executed
16
in connection herewith, is intended by the parties as a final expression of this
Agreement and is intended as a complete and exclusive statement of the terms and
conditions thereof
Section 15.14. Rights of Holders. No Holder shall have any
independent rights hereunder other than those rights granted to individual
Holders pursuant to Section 5.7 of the Indenture; provided that nothing in this
subsection shall limit any rights granted to the Trustee under the Notes or the
Indentures.
Section 15.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; WAIVER OF DAMAGES. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ANY DISPUTE
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO, THE RELATIONSHIP
ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS IN CONNECTION WITH
THIS AGREEMENT AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. NOTWITHSTANDING THE FOREGOING, THE MATTERS IDENTIFIED IN 31 C.F.R. PART
357,61 FED. REG. 43626 (AUG. 23, 1996) SHALL BE GOVERNED SOLELY BY THE LAWS
SPECIFIED THEREIN.
(b) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS
TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER, HAVE THE RIGHT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR THE
PLEDGED COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH
(AND HAVING PERSONAL OR IN REM JURISDICTION OVER THE PLEDGOR OR THE PLEDGED
COLLATERAL, AS THE CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH PLEDGED
COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE TRUSTEE. THE PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SET
OFFS OR CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH
PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE,
EXCEPT FOR SUCH COUNTERCLAIMS, SET OFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN
ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN THE CITY
OF NEW YORK ONCE THE TRUSTEE HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(c) THE PLEDGOR AGREES THAT NEITHER ANY HOLDER NOR (EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT OR THE INDENTURES) THE
17
TRUSTEE IN ITS CAPACITY AS TRUSTEE SHALL HAVE ANY LIABILITY TO THE PLEDGOR
(WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
PLEDGOR IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR
ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS
DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON
THE TRUSTEE OR SUCH HOLDER, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT
OF ACTS OR OMISSIONS ON THE PART OF THE TRUSTEE OR SUCH HOLDERS, AS THE CASE MAY
BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER IN
CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY JUDGMENT OR
OTHER COURT ORDER PERTAINING TO THIS AGREEMENT OR ANY RELATED AGREEMENT OR
DOCUMENT ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER, OR TO ENFORCE BY
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT BETWEEN THE
PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS ON THE OTHER HAND.
IN WITNESS WHEREOF, the Pledgor and the Trustee have each caused this
Agreement to be duly executed and delivered as of the date first above written.
EARTHWATCH INCORPORATED
(as Pledgor)
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer,
President and Director
THE BANK OF NEW YORK
(as Trustee)
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: XXXXXX X. XXXXXX
Title: Vice President
THE BANK OF NEW YORK
(as EarthWatch Securities Intermediary)
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: XXXXXX X. XXXXXX
Title: Vice President
EXHIBIT A
PLEDGED SECURITIES
--------------------------------------------------------------------------------------------------------------------
Description of Security CUSIP Number Final Maturity Original Principal Amount Cost at Closing
--------------------------------------------------------------------------------------------------------------------
United States Treasury Note 0000000X0 11/30/99 $21,837,000 $22,041,931.63
--------------------------------------------------------------------------------------------------------------------
United States Treasury Note 000000X00 04/15/00 $ 2,933,000 $ 2,977,743.78
--------------------------------------------------------------------------------------------------------------------
United States Treasury Note 0000000X0 11/30/00 $ 2,879,000 $ 2,862,341.03
--------------------------------------------------------------------------------------------------------------------
EXHIBIT B
CERTIFICATE
Pursuant to Section 3(f) of the Agreement (the "Agreement") dated as
of July 12, 1999 between EarthWatch Incorporated (the "Pledgor") and The Bank of
New York, as trustee (the "Trustee") for the Holders, and The Bank of New York,
as securities intermediary (the "EarthWatch Securities Intermediary"), the
undersigned officer of the Trustee, on behalf of the Trustee, and the
undersigned officer of the EarthWatch Securities Intermediary, on behalf of the
EarthWatch Securities Intermediary, make the following certifications to the
Pledgor and the initial purchasers of the Notes. Capitalized terms used and not
defined in this Certificate have the meanings set forth or referred to in the
Agreement.
1. Substantially contemporaneously with the execution and delivery of
this Certificate, the Trustee has established with the EarthWatch Securities
Intermediary, as Securities Intermediary, the Pledge Account. The EarthWatch
Securities Intermediary has acquired a Security Entitlement to the United States
Treasury securities identified in Annex 1 to this Certificate (the "Pledged
Securities") from the FRBNY and holds a Security Entitlement thereto in the
FRBNY's Security Account. The EarthWatch Securities Intermediary has made
appropriate book entries in its records establishing that the Pledged Securities
and the Trustee's Securities Entitlement thereto have been credited to and are
held in the Pledge Account.
2. The Trustee has established and maintained and will maintain the
Pledge Account and all Securities Entitlements and other positions carried in
the Pledge Account solely in its capacity as Trustee and has not asserted and
will not assert any claim to or interest in the Pledge Account or any such
Securities Entitlements or other positions except in such capacity.
3. The Trustee and the EarthWatch Securities Intermediary have
acquired their Security Entitlements to the Pledged Securities for value and
without notice of any adverse claim thereto. Without limiting the generality of
the foregoing, the Pledged Securities are not and the EarthWatch Securities
Intermediary's and the Trustee's Security Entitlements to the Pledged Securities
are not, to their knowledge, subject to any Lien granted by either of them in
favor of any Securities Intermediary (including, without limitation, NFSC or the
FRBNY) through which the Trustee derives its Security Entitlement to the Pledged
Securities.
4. Neither the EarthWatch Securities Intermediary nor the Trustee has
caused or permitted the Pledged Securities or any Security Entitlement thereto
to become subject to any Lien created by or arising through either of the
Trustee or the EarthWatch Securities Intermediary.
IN WITNESS WHEREOF, the undersigned officers have executed this
Certificate on behalf of the Trustee, and on behalf of the EarthWatch Securities
Intermediary, respectively, this 12th day of July, 1999.
THE BANK OF NEW YORK
(as Trustee)
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
(as EarthWatch Securities Intermediary)
By:
---------------------------------------
Name:
Title:
B-2
ANNEX I
PLEDGED SECURITIES
Description of Security CUSIP Number Final Maturity Original Principal Amount Cost at Closing
-----------------------------------------------------------------------------------------------------------
United States Treasury Note 0000000X0 11/30/99 $21,837,000 $22,041,931.63
-----------------------------------------------------------------------------------------------------------
United States Treasury Note 000000X00 04/15/00 $ 2,933,000 $ 2,977,743.78
-----------------------------------------------------------------------------------------------------------
United States Treasury Note 0000000X0 11/30/00 $ 2,879,000 $ 2,862,341.03
-----------------------------------------------------------------------------------------------------------
B-3
EXHIBIT C
INDEPENDENT ACCOUNTANTS' REPORT ON APPLYING
AGREED-UPON PROCEDURES
EARTHWATCH INCORPORATED
Longmont, Colorado
We understand that EarthWatch Incorporated (the "Company") will issue on July
12, 1999, 199,000 units, each consisting of one 13% Senior Discount Note due
2007 and 49.095 shares of 8.5% Series C cumulative convertible redeemable
preferred stock of the Company. We also understand that the Company, pursuant to
a pledge agreement dated as of July 12 (the "Pledge Agreement"), between the
Company and the Bank of New York, as trustee (the "Trustee") and, as securities
intermediary, must make scheduled payments, as outlined in the attached Schedule
I (the "Payments"), to pay the unpaid premiums related to the insurance with
respect to the launch and operation of the Company's Quick-Bird 1 satellite. We
also understand that in connection with the Payments the Trustee will hold the
securities listed on the attached schedule (Schedule II) (the "Securities")
pursuant to the Pledge Agreement.
We have been requested by the Company, Xxxxxx Xxxxxxx & Co. Incorporated and the
Trustee (collectively, the "Intended Users") to prove the arithmetic accuracy of
the computations shown on the attached schedules prepared by the Company.
We have performed the procedures enumerated below, which were agreed to by the
Intended Users, solely to assist the Intended Users with respect to proving the
arithmetic accuracy of the computations shown on the attached schedules. This
agreed upon procedures engagement was performed in accordance with standards
established by the American Institute of Certified Public Accountants. The
sufficiency of the procedures is solely the responsibility of the Intended Users
of this report. Consequently, we make no representation regarding the
sufficiency of the procedures described below either for the purpose for which
this report was requested or for any other purpose. The procedures that we
performed and our findings are as follows:
1. We have proved the arithmetic accuracy of the computation of the
scheduled receipts of maturing principal and interest to be received
from the Securities and cash on deposit as shown on Schedule II, which
was prepared by the Company. Other than proving such arithmetic
accuracy, we have not confirmed or otherwise verified the information
on that schedule.
2. We compared the amounts in the "Total Available" column on Schedule II
to the amount and due dates of the Payments provided in Schedule I and
found that the amount in the "Total Available" column of Schedule II
on each date a Payment
will be due is equal to or greater than the amount that will be due on
such date for Payment.
In performing the above calculations, we have relied solely on the data set
forth in the attached schedules prepared and provided to us by the Company. The
scope of our engagement did not include the verification of any underlying data,
assumptions or definitions necessary to derive the calculations. Such underlying
data, assumptions and definitions include, but are not limited to, the
following:
(i) the principal amounts, coupon rates, and related maturities for
the Securities; and
(ii) the schedule of the dates and the amounts of the Payments.
We are not engaged to, and did not, perform an examination, the objective of
which would be the expression of an opinion on the specified elements, accounts,
or items included in the attached schedules. Accordingly, we do not express such
an opinion. Had we performed additional procedures, other matters might have
come to our attention that would have been reported to you.
This report is intended solely for the use of the Intended Users listed above
and should not be used by those who have not agreed to the procedures and taken
responsibility for the sufficiency of the procedures for their purposes.
PricewaterhouseCoopers LLP
Broomfield, Colorado
July 12, 1999
C-2
SCHEDULE I
Payment Date Amount Due
-------------------------------------------------------------------
February 14, 2000 $22,597,500.00
-------------------------------------------------------------------
July 13, 2000 3,013,000.00
-------------------------------------------------------------------
March 15, 2001 3,013,000.00
--------------
-------------------------------------------------------------------
TOTAL AMOUNT DUE $28,623,500.00
==============
-------------------------------------------------------------------
C-3
SCHEDULE II
Coupon
Interest
United States Coupon Maturity Payment Coupon Principal Total Premium Cash
Treasury Note Rate Date Date Interest/(1)/ Amount Available/(2)/ Payment/(3)/ Remaining/(4)/
------------- ------ -------- -------- ------------- ---------- -------------- ------------- --------------
000000X00 5.5% 4/15/00 10/15/99 $ 80,658 $ 80,658 $ 80,658
0000000X0 4.625% 11/30/00 11/30/99 $ 66,577 $ 66,577 $147,235
0000000X0 5.625% 11/30/99 11/30/99 $614,166 $21,837,000 $22,598,401 $22,597,500 $ 901
000000X00 5.5% 4/15/00 4/15/00 $ 80,657 $ 2,933,000 $ 3,014,558 $ 3,013,000 $ 1,558
0000000X0 4.625% 11/30/00 5/31/00 $ 66,577 $ 68,135 $ 68,135
0000000X0 4.625% 11/30/00 11/30/00 $ 66,577 $ 2,879,000 $ 3,013,712 $ 3,013,000 $ 712
------------------
/(1)/ Coupon interest is calculated assuming a 180-day semi-annual period and
a 360-day year.
/(2)/ Total Available for each period (on 11/30/99, 4/15/00, and 11/30/00) is
equal to the sum of Coupon Interest and Principal Amount for the current
period and Cash Remaining for the previous period.
/(3)/ As outlined in Schedule 1.
/(4)/ Cash Remaining for each period is equal to Total Available for the period
less the Premium Payment for each period.
